Is it enough to just cc people into emails and hold a few meetings so everyone is informed about progress? Short answer: no.
Long answer, read on…
Rubbing along together
Although there is no overriding duty of good faith under English law (a limited duty appears in some relational contracts), there is an implied duty of co-operation in contracts relating to construction projects.
This comprises several components:
- Non-prevention: “there is an implied contract by each party that he will not do anything to prevent the other party from performing a contract or to delay him in performing it.” [1]
- Active assistance: “a duty to do whatever is necessary in order to enable a contract to be carried out” [2]
These have been summarised as:
“each will co-operate with the other to secure performance of the contract and that neither party will, by his own act or default, prevent performance of the contract” [3]
Examples of this duty include the employer providing possession of the site and not interfering with subcontractors or the contract administrator. It requires everyone to share information (an essential element of BIM too).
Providing information
With electronic and digital communication, we may be at risk of over-sharing… A huge infrastructure project might have as many as 1 million drawings! Some parties still appear to be reluctant to share regular up-to-date relevant information with others:
“…there is no point in supplying that information unless it is supplied in such a manner and at such times as is reasonably necessary for the [contractor and subcontractors] to have it in order for the [contractor and subcontractors] to fulfil their obligations…” [4]
A main contractor owes a duty provide to or procure for its subcontractors “full, correct and co-ordinated information concerning the sub-contract works” ie information that the main contractor knew or should have known was needed, in the manner and times needed to “enable [the sub-contractors] to fulfil their obligations under the sub-contract.” [5]
What should you do?
Working with the rest of the project team is the bare minimum expected of you.
The law also requires you to actively help each other to deliver the project, as well as not getting in each other’s way. You also need to keep people informed without bombarding their inbox with everything.
At 500 Words, we strive to create a collaborative relationship between the parties from the very start, with simple, digital trust-enhancing contracts.
Cases: [1] Barque Quilpue Ltd v Brown [1904] 2 KB 264 (EWCA); [2] Merton LBC v Leach 32 BLR 51; [3] Airscape Ltd v Heaslon Properties Ltd [2008] IEHC 82; [4] J & J Fee Ltd v Express Lift Co Ltd 34 Con LR 147; [5] Scottish Power plc v Kværner Construction (Regions) Ltd [1999] SLT 721(CSOH)
